2020 IL App (2d) 190083-U No. 2-19-0083 Order filed February 3, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court JOANN O’HARA, ) of Kane County. ) Petitioner-Appellant, ) ) and ) No. 16-D-667 ) DAVID O’HARA, ) Honorable ) René Cruz, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRIDGES delivered the judgment of the court. Justices Jorgensen and Hudson concurred in the judgment.
ORDER
¶1 Held: The trial court erred in modifying the amount of death benefit coverage for maintenance, because respondent never filed a motion to modify. Petitioner acquiesced in the manner the trial court conducted the hearing on her contempt petition, so any error in not receiving a formal hearing on the petition was invited error. Therefore, we affirmed in part, reversed in part, and remanded.
¶2 Petitioner, Joann O’Hara, and respondent, David O’Hara, were married on August 27,
1977, and their marriage was dissolved on December 19, 2017. In November 2018, petitioner filed
a petition for rule to show cause why respondent should not be held in contempt for failing to have
a $300,000 death benefit coverage for maintenance, as required by the modified dissolution 2020 IL App (2d) 190083-U
judgment. Following a hearing, the trial court found that respondent was not in contempt. It ruled
that he was to maintain death benefits in the amount of $200,000, with that total declining monthly
based on maintenance payments.
¶3 On appeal, petitioner argues that the trial court erred in: modifying the level of death
benefit coverage without a showing of a substantial change in circumstances; not conducting a
meaningful formal hearing on her petition for contempt; treating her petition for contempt as a
motion to modify; and denying her motion to reconsider. We affirm in part, reverse in part, and
remand the cause.
¶4 I. BACKGROUND
¶5 The parties’ December 19, 2017, dissolution judgment required that respondent pay
petitioner maintenance of $9,800 per month. The judgment provided as follows regarding life
insurance to secure maintenance:
“Pursuant to 750 ILCS 5/504, DAVID shall secure and maintain a life insurance
policy naming himself as the insured and JOANN as beneficiary and trustee, having a
minimum face value of $1,000,000. Said policy shall be effective from the date of entry of
the herein Judgment, for so long as DAVID has a duty to pay maintenance to JOANN. Said
obligation to maintain life insurance shall constitute a lien on the estate of DAVID to the
extent of the required face value prescribed above[.]”
¶6 Respondent filed a posttrial motion in which he argued that the provision was contrary to
statute because in order to impose such an obligation, there must have been evidence presented
regarding what insurance was currently in effect, the premium cost, and respondent’s insurability
at age 67. He additionally argued that considering the total assets awarded to petitioner, there was
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no need to provide life insurance to secure a maintenance obligation that in all likelihood would
not extend beyond 24 months.
¶7 A hearing on the posttrial motion took place on February 6, 2018. On the issue of life
insurance, respondent argued that the trial court had not received evidence that would have allowed
it to make findings about the premium costs of the insurance policy and who should pay for it. He
further argued that $1 million was not representative of what would be necessary to secure
maintenance in this case because he was 67 years old at the time of trial and had just turned 68.
Respondent stated that he had a three-year employment agreement that started on January 1, 2017,
and would be ending on December 31, 2019. The trial court then stated:
“With respect to the life insurance having reviewed the section of the statute that
was provided in the [sic] 5/504(f)[,] it looks like I will modify the judgment to indicate that
the existing life insurance policy that [respondent] had that he will make [petitioner] the
beneficiary of $300,000 of the existing amount. If he does not have coverage in his existing
policy to cover the $300,000 that [sic] he should cooperate pursuant to paragraph (f)(2)
with [petitioner] obtaining a policy. I think [respondent] is correct I don’t have enough
information to make the determination or findings for [respondent] to get a new policy of
his own.”
¶8 On February 9, 2018, the trial court entered a written order modifying the dissolution
judgment as follows:
“Life Insurance: The provision of the Judgment for Dissolution of Marriage
requiring Respondent to secure and maintain life insurance to secure maintenance is
modified to provide that Respondent shall maintain [his] existing life insurance naming
Petitioner as beneficiary for an amount not less than $300,000.00 and if said coverage
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expires due to Respondent’s age, Respondent shall provide substitute security for
maintenance of $300,000.00 payable upon his death to Petitioner that is satisfactory to
Petitioner, for so long as he has an obligation to pay maintenance to Petitioner.”
The trial court also modified the income calculation for maintenance, resulting in petitioner
receiving $9,350 per month.
¶9 On September 6, 2018, petitioner filed a petition for indirect civil contempt against
respondent, alleging that respondent had refused to provide her with documentation that he had a
life insurance policy naming her as the beneficiary. A rule to show cause issued on September 13,
2018. In his response, respondent admitted that he did not have a life insurance policy with
petitioner as the beneficiary, but he argued that he had provided substitute security for his
remaining maintenance obligation. The trial court entered an agreed order on October 17, 2018,
that stated that the hearing on the petition for rule to show cause was continued to November 1,
2018, and that “if the parties are unable to agree to substitute security for Respondent’s
maintenance obligation[,] the issue of establishing adequate substitute security shall also be
addressed by the Court.”
¶ 10 At the hearing on November 1, 2018, petitioner’s attorney stated that she would like to
call witnesses for her petition. Respondent’s attorney stated that they could “probably just stipulate
to the facts” and that there “may be an issue for the Court to resolve but there’s no basis for
contempt.” He continued: “But if I can offer a stipulation, if counsel disagrees with anything I
guess we can have a hearing on those points.” The trial court responded: “Okay.” Respondent’s
attorney stated that as a result of respondent’s posttrial motion, the trial court had revised the
insurance provision to provide that respondent would keep petitioner as the beneficiary of the
insurance policy that he had in place, up to $300,000, and that if that policy lapsed or became
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unaffordable “because the evidence was it was a 15-year level term and then when it expired at his
age he would not be able to replace it or continue it.” The attorney stated that this scenario came
to pass, and respondent arranged with his employer to assign a benefit to petitioner of $10,833.33
per month from the date of his death until December 31, 2019, when his employment agreement
was set to terminate. The attorney stated that petitioner rejected the offer, “so that’s why the order
says it’s also for the Court to decide what security is required because the *** ruling on the posttrial
motion was he would offer substitute security acceptable to” petitioner. The attorney stated that
respondent was not in contempt because he maintained the life insurance through the termination
of the policy, and he offered substitute security.
¶ 11 Respondent’s attorney asked petitioner’s attorney if there was anything that he said that
was incorrect. She stated that the order required that the life insurance or substitute security total
$300,000, but that the substitute security he offered totaled half of that amount. Petitioner’s
attorney stated there was no provision automatically reducing the security amount. Respondent’s
attorney said that the $300,000 was based on how much longer respondent was expected to work
at the time of trial, such that each month that he paid maintenance of $9,350, the need for security
was $9,350 lower. Petitioner’s attorney disagreed, stating that there was no indication at the time
of trial that respondent would not be ordered to pay maintenance upon his retirement. She also
disagreed that a new insurance policy was cost-prohibitive, stating that she did not know that he
applied for any. Petitioner’s attorney further stated that respondent had assets of over $300,000
and could put that amount in a money market account naming petitioner as the beneficiary. She
confirmed that petitioner rejected the offer for the employer to pay her $10,833.33 per month.
¶ 12 The trial court stated:
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“Now I hear that there’s some sort of counter as to what other opportunities there
would be to do something. I don’t *** know if the rule got filed immediately after it was
rejected or what. I don’t really see that this is a rule, what this really is is a motion to
determine what the substitute security for maintenance should be. So I don’t see that this
falls into a local rule to show case, willful behavior I think it’s just a disagreement as to
what we think the reasonable – or substitute security should be, which means that there is
more information that needs to be determined.”
The trial court then stated that petitioner was proceeding on the rule, and it questioned whether she
was asking the trial court to determine whether respondent’s offer of a security interest through
his employer was substitute security for maintenance.
¶ 13 Respondent’s attorney stated that they agreed on the last court date that even if respondent
was not found in contempt, they would like to resolve the issue. He further stated that he thought
that the only dispute was over the amount of the substitute security. The attorney stated that he
wished he had asked at the time of the posttrial motion to make the security a declining amount
for each month that respondent remained employed.
¶ 14 Petitioner’s attorney stated that there should not be a disagreement over the amount because
the trial court had set the amount at $300,000. She stated that if it was a substitute security for a
$300,000 life insurance policy, the substitute security should equal $300,000.
¶ 15 The trial court stated that based on the change in circumstances of the insurance policy
expiring, it was comfortable setting the security amount on what was owed between that date and
the end of the employment contract in December 2019, after subtracting $50,000 for an insurance
policy that respondent currently had through his employer.
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¶ 16 According to a certified bystander’s report, the court reporter then left the courtroom for
the day. Petitioner’s attorney drafted an order that stated that respondent would secure a life
insurance policy or other form of security in the amount of $200,000. The security outlined by the
trial court was $50,000 in life insurance through respondent’s employer, plus respondent naming
petitioner as the designated representative to receive $10,833.33 per month through December
2019, per the assignment of residual compensation provided for in respondent’s employment
agreement. The attorneys approached the bench to discuss the draft order with the trial court.
Respondent’s attorney stated that he feared that there would be further litigation between the
parties after the next maintenance payment if the draft order was entered. He told the trial court
that the life insurance obligation and security should be a diminishing amount based upon the
amount of time left for respondent’s maintenance obligation; that respondent’s employer-based
security diminished with each paycheck respondent received; that the attorney wished that he had
made this argument during the first posttrial hearing on the issue; that he had objected to the form
of the order drafted by petitioner’s attorney after the first posttrial hearing; that the order as drafted
would be a windfall to petitioner if respondent died the next day; and that the parties would have
to return to court on the same issue in the future. Petitioner’s attorney stated that respondent’s
attorney’s position differed from what the trial court had just ruled, but the trial court agreed with
respondent’s attorney. The trial court ordered that the draft order be modified to reflect a
diminishing amount of the requirement for the security, over petitioner’s attorney objection.
¶ 17 The trial court’s written order stated that: (1) respondent was found not in contempt of the
December 19, 2017, dissolution judgment and the February 9, 2018, order; and (2) respondent was
to maintain a combination of life insurance policies and other forms of security in the amount of
$200,000 naming petitioner as the beneficiary, so long as he had a duty to pay maintenance, and
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“declining monthly in accordance with terms of assignment.” Specifically, respondent was to
maintain a $50,000 life insurance policy through his employer with petitioner as the beneficiary,
and he was to name petitioner as his designated representative to receive $10,833.33 per month
from his employer through December 2019 as described in the assignment of residual
compensation in the employment agreement dated October 5, 2018.
¶ 18 Petitioner filed a motion to reconsider on November 28, 2018. She argued that respondent
was clearly in contempt of court, and that the issue of modifying the December 17, 2018, judgment
or February 9, 2018, order was not before the court. She also argued that there was no substantial
change in circumstances since February 9, 2018, to justify a modification. The trial court denied
the motion on December 11, 2018.
¶ 19 Petitioner timely appealed. She thereafter obtained permission from this court to file the
aforementioned bystander’s report. See supra ¶16.
¶ 20 II. ANALYSIS
¶ 21 Petitioner first argues that the trial court erred in modifying the level of death benefit
coverage from $300,000, which was the amount set in the February 9, 2018, order, to $200,000.
She notes that neither party appealed from that order or the dissolution judgment. According to
petitioner, the February 9, 2018, court order unambiguously provides that respondent is to have a
life insurance policy or substitute security of $300,000.
¶ 22 Petitioner further contends that there was not a substantial change in circumstances from
February to November 2018 to justify a modification. She argues that respondent is still employed
by the same company, still earns the same salary, and is still receiving the same monthly cell phone
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and car allowance. 1 She maintains that the October 17, 2018, agreed order simply reflected the
understanding that the parties would attempt to decide on adequate substitute security, as opposed
to the amount of the security.
¶ 23 Petitioner maintains that although respondent’s attorney argued that her receiving
$300,000 in life insurance benefits upon his death would be a windfall, this would not constitute a
substantial change in circumstances. She argues that respondent’s position is also without merit
because life insurance as a security for respondent’s maintenance obligation was always meant to
be available to her upon his death. Petitioner highlights that the original dissolution judgment
stated that the “obligation to maintain life insurance shall constitute a lien on the estate of
[respondent] to the extent of the required face value prescribed above[.]” Petitioner cites In re
Marriage of Walker, 386 Ill. App. 3d 1034, 1045 (2008), which states that the Illinois Marriage
and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2018)) does not
prohibit payments during a payor’s life that may have an effect after the payor’s death.
¶ 24 Petitioner argues that respondent’s attorney misrepresented to the trial court that the
$300,000 figure came from the amount of total maintenance respondent was expected to pay in
February 2018, such that the obligation for security decreased by the amount of maintenance paid
each month. She argues that he further misrepresented to the trial court that respondent’s
maintenance obligation would terminate in December 2019. Petitioner argues that, to the contrary,
she was awarded permanent maintenance. Petitioner argues that respondent’s estate is much
greater than hers when considering his nonmarital property, and he continues to receive income
1 Petitioner’s brief was filed on June 14, 2019; evidence was introduced at the original trial
that respondent’s employment agreement was set to terminate on December 31, 2019.
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from employment and other sources, so it is unlikely that the trial court would terminate her
maintenance even upon respondent’s retirement.
¶ 25 Petitioner relatedly argues that respondent never filed a motion to modify the obligation,
so the trial court lacked the authority to change her petition for indirect civil contempt to a motion
to modify. She points out that “the provisions of any judgment respecting maintenance or support
may be modified only as to installments accruing subsequent to due notice by the moving party of
the filing of the motion for modification.” 750 ILCS 5/510(a) (West 2018). She also cites Ligon v.
Williams, 264 Ill. App. 3d 701, 707 (1994), where the appellate court stated, “The court’s authority
to exercise its jurisdiction and resolve a justiciable question is invoked through the filing of a
complaint or petition.” Petitioner argues that the pleading before the trial court was a petition for
indirect civil contempt and not a motion to modify the February 9, 2018, order.
¶ 26 Petitioner additionally argues that the trial court erred in not conducting a meaningful
formal hearing on her petition, depriving her of due process. She maintains that at no time during
the November 1, 2018, proceedings did her counsel stipulate to any of respondent’s attorney’s
statements. Petitioner argues there was no evidence presented to the court on the “assignment of
benefits” document discussed by respondent’s attorney. She highlights that the trial court’s
November 1, 2018, order states that the “assignment of benefits” document was dated October 5,
2018. Petitioner argues that this was one month after she filed her petition for indirect civil
contempt, showing that it was clearly a last-minute attempt by respondent to avoid a finding of
contempt.
¶ 27 Finally, petitioner argues that the trial court erred in denying her motion to reconsider,
based on her above-mentioned arguments.
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¶ 28 Respondent argues in response that before the November 1, 2018, hearing, it was already
a matter of record that the existing life insurance policy referenced in the February 9, 2018, order
had expired on June 27, 2018; respondent points to a copy of the policy in the trial exhibits. He
similarly testified at the dissolution trial that it was a $1 million, 15-year term policy that expired
in July 2018. Respondent argues that petitioner alleged only that he had failed to provide proof
that he designated her the beneficiary of that existing life insurance policy, but all of the evidence
in the record establishes that the policy had expired before petitioner filed the petition. According
to respondent, the October 17, 2018, agreed order contemplated that the November 1, 2018,
hearing would address the issue of security for respondent’s maintenance obligation, rather than
the status of the expired life insurance policy.
¶ 29 Respondent maintains that at the November 1, 2018, hearing, petitioner’s attorney was
given the opportunity to reject the proposed stipulation of facts, but the only objection she made
was to assert that if respondent did not have a life insurance policy with a death benefit of
$300,000, then he would be required to provide substitute security in that amount. Respondent
argues that she did not contest that the life insurance policy referenced in the February 9, 2018,
order had not expired, nor did she assert any basis for finding him in contempt for failing to
maintain the policy beyond the 15-year term.
¶ 30 Respondent argues that the agreed order’s terms clearly contemplated the trial court
considering a modification of the life insurance provision to provide substitute security for his
maintenance obligation. He asserts that petitioner’s only real objection to the process followed at
the November 1, 2018, hearing is that the trial court declined to accept her argument that the
substitute security should be in the full amount of $300,000. Respondent argues that under the
doctrine of invited error, petitioner cannot agree to the trial court modifying the substitute security
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provision and then complain that the trial court lacked the authority to modify the amount. See
LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806, 820 (2008) (under the
doctrine of invited error, a party may not ask to proceed in one manner and then later argue that
the course of action was in error). Respondent argues that section 504(f)(2) of the Marriage Act
(750 ILCS 5/504(f)(2) (West 2018)) clearly contemplates security for maintenance being ordered
in a “descending” amount, which is what the trial court did in this instance.
¶ 31 Respondent additionally argues that the expiration of the 15-year term of the life insurance
policy on July 27, 2018, constituted a substantial change in circumstances which opened up the
prior order to modification. Respondent points out that the trial court specifically stated that based
on the change in circumstances of the insurance policy expiring, it was comfortable setting the
security amount on what was owed between that date and the end of the employment contract in
December 2019, after subtracting $50,000 for an insurance policy that respondent currently had
through his employer.
¶ 32 Last, respondent argues that he cannot be held in indirect civil contempt for violating the
terms of the February 9, 2018, order, because that order is void or voidable due to the trial court
exceeding its statutory authority in requiring substitute security for maintenance upon the
expiration of the existing life insurance policy. Respondent cites section 504(f) of the Marriage
Act (750 ILCS 5/504(f) (West 2018)). Section 504(f)(1) (750 ILCS 5/504(f)(1) (West 2018)) states
that a trial court may order that maintenance be secured by an existing life insurance policy.
Section 504(f)(2) (750 ILCS 5/504(f)(2) (West 2018)) states that if the trial court determines that
maintenance should be secured by a new life insurance policy on the payor’s life, the trial court
may order only that the payor cooperate on the steps for the payee to obtain the policy, at the
payee’s sole option and expense.
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¶ 33 Petitioner replies that there was no evidence submitted to the court that respondent paid
premiums on the life insurance policy, or that it expired on June 27, 2018. She asserts that even if
it had expired, the February 9, 2018, order provided that if the insurance policy expired, respondent
was to provide substitute security of $300,000. Petitioner argues that the issue on appeal is whether
the trial court erred in modifying the amount of security for her maintenance without a showing of
a substantial change in circumstances. She argues that her agreement in the October 17, 2018,
order was only that before hearing the petition for indirect civil contempt, the parties would attempt
to agree on what the substitute security would be, and if they were not able to, the issue would also
be addressed by the trial court. According to petitioner, she never agreed to a reduction or that the
trial court would address the issue of modification in the amount of substitute security. She also
contends that respondent cannot argue that the trial court’s February 9, 2018, order is void or
voidable, as he did not file a cross-appeal, and she asks that we strike this argument.
¶ 34 We agree with petitioner that the trial court erred in modifying the amount of the substitute
security absent a motion to modify. Whether the trial court followed the proper procedure based
on the pleadings before it is a question of law that we review de novo. See Atkins v. Robbins,
Salomon & Patt, Ltd., 2018 IL App (1st) 161961, ¶ 57 (we review questions of law de novo). “The
court’s authority to exercise its jurisdiction and resolve a justiciable question is invoked through
the filing of a complaint or petition, pleadings that function to frame the issues for the trial court
and circumscribe the relief the court is empowered to order.” Suriano v. Lafeber, 385 Ill. App. 3d
490, 492 (2008). Therefore, a trial court may not afford a party relief, despite the presence of
evidence supporting such relief, without a corresponding pleading. Cushing v. Willis, 2018 IL App
(5th) 170444, ¶ 19; see also In re Estate of Bontkowski, 337 Ill. App. 3d 72, 77 (2003) (“The issues
in any litigation are determined by the pleadings and an issue cannot be sustained by evidence
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absent a corresponding pleading.”).
¶ 35 In this case, the February 9, 2018, order required respondent to maintain his existing life
insurance, naming petitioner as beneficiary, in an amount not less than $300,000. It stated that if
the coverage expired due to respondent’s age, he was to provide substitute security for maintenance
of $300,000 that was satisfactory to petitioner, for as long as he had an obligation to pay
maintenance. Petitioner thereafter filed petition for rule to show cause why respondent should not
be held in indirect civil contempt for failing to provide proof that he had a life insurance policy
naming her as the beneficiary. The October 17, 2018, agreed order further raised the issue of an
adequate substitute security. Thus, the only issues before the trial court on November 1, 2018,
were the rule to show cause and the question of an adequate substitute security. There was no
motion to modify the amount of the security required in the February 9, 2018, order, nor was there
a motion requesting that the amount of security decrease monthly. Therefore, the trial court lacked
authority to order such relief, as only the petition for rule to show cause was before the court. See
also 750 ILCS 5/510(a) (West 2018) (any judgment regarding maintenance or support may be
modified only for installments accruing after notice by the moving party of the filing of a motion
for modification).
¶ 36 Respondent’s argument of invited error is inapplicable for this issue. Although petitioner
agreed to the trial court addressing the issue of adequate substitute security, she never stipulated
to the trial court changing the amount of the substitute security required in the February 9, 2018,
order, nor did she stipulate to amount of the security decreasing over time. Respondent clearly
argued for such relief during the November 1, 2018, hearing, but he should have first filed a motion
to bring these issues before the trial court.
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¶ 37 That being said, we do believe that the doctrine of invited error applies to petitioner’s
argument that she was denied due process in not having a formal hearing on her petition for rule
to show cause. Under the doctrine of invited error, a party cannot complain of error which the party
induced the court to make, or to which the party consented. Ely v. Pivar, 2018 IL App (1st) 170626,
¶ 43. Here, at the November 1, 2018, hearing, respondent’s attorney suggested to the trial court
that the parties could probably stipulate to the facts, and that if petitioner’s attorney disagreed on
anything, they could “have a hearing on those points.” Petitioner’s attorney did not object to this
suggestion at this point or at any time during the hearing. In fact, respondent’s attorney later asked
petitioner’s attorney if anything that he said was incorrect. Instead of asserting the right to call
witnesses and present evidence, petitioner’s attorney argued that the amount of substitute security
should total $300,000. Without a clear objection to the manner in which the hearing proceeded,
any error by the trial court would constitute invited error, and petitioner cannot now complain that
she was deprived of her right to due process. As such, we have no basis to disturb the trial court’s
ruling that respondent was not in contempt of the December 19, 2017, dissolution judgment and
the February 9, 2018, order. We therefore need not address respondent’s argument that he cannot
be held in contempt for violating the February 9, 2018, order because it was void or voidable, nor
do we need to entertain petitioner’s request that we strike that argument. Based on our resolution,
we also need not address petitioner’s argument that the trial court erred in denying her motion to
reconsider.
¶ 38 III. CONCLUSION
¶ 39 For the reasons stated, we affirm the judgment of the Kane County circuit court insofar as
it found respondent not in contempt. However, we reverse the portion of the judgment regarding
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the terms of the substitute security, and we remand for further proceedings consistent with this
order.
¶ 40 Affirmed in part and reversed in part; cause remanded.
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